Page:The New International Encyclopædia 1st ed. v. 16.djvu/520

* PROPERTY. 452 PROPERTY. sale before witnesses, known as mancipation, they were also termed res mrmcipi, ami the things of pecunia were termed je.« ncc maiwiiji. In early Ronian law these two classes of property seem to have been protected by different remedies and to have been governed by different rules as re- gards testamentary disposition. In the later law, as modilied by the imetors. the distinction lost all practical importance. In the later jurispru- dence, family riglits were taken out of the otegorj' of i)roperty (res) and put under the Jaw of persons. It is probable that the debtor was originally regarded as a res mancipi ; but with the disap- pearance of the pledge of the debtor's person in the form of sale [nexum), rights against debtors (obligations, q.v.) were sharply distinguished from riglits over things. The Roman law also developed a clear dis- tinction between ownership and all other rights in things. (1) Ownership (proprietas) included all powers that were neither specifically with- held by the law, in the interest of the community. nor specifically granted l)y the owner to another person. Ownership was thus at once the general and the residuary right over things. (2) All other rights (jnrn in re) were limited either in content or in duration. These limited rights ■were either (a.) rights of use, viz. servitudes (q.v.) and long leaseholds (emphyteusis and sii- perfieies, q.v.), or (b) rights of eventual sale, •created to secure debts, viz. pledge (pignus, q.v.) and hypothecation (q.v.). Except as regards the real servitudes and the leaseholds, these rights •could be established either over immovables or movables; and substantially the same rules were applied to both classes of property. With rare •exceptions, right in things could be freely alien- ated, and unless restricted to the single life, they "Were subject to free testamentary disposition. Finally all rights in things run against all the ■world, title prevailing over possession. ■ Early Germ. and Meoi.eval European Law. <jerman law drew a sharp distinction lietween real property [eiyen] and movable property ((jilt), and the distinction was emphasized by the development of the feudal land-tenures. Different kinds or classes of ownerslii]) were recognized as regards real property: the right of a feofl'or was •described as 'over-ownership' or dominium emi- nens; the right of the feoffee in possession w'as described as 'under-ownership' or 'beneficial own- ership' — domitiiinii vtile. • A leasehold of a per- manent character, such as was frequently held by peasants, was also described as dominium utile. At German law the owner of land had not free power of alienation; inherited land, at least, was treated as family property, and was 'tied up' (verfangen) in the interest of wife and children. In some territories kinsmen and even neighbors had rights of preemi)tion. Further restrictions upon alienation came with the development of the feudal tenures. In spite of these restrictions, liowever, lawful seisin of land was a right re- sembling Roman ownership, since it was enforce- able even against honest possessors. Modern Cn^L Codes. In the law of real prop- erty, the disappearance of feudal tenures and the conversion of peasant holdings either into ordinary leaseholds or into freeholds has prac- tically reestablished the simpler Roman cate- gories. Political power has been separated anew from propert}' right, and there is no eminent do- main except that of the State. On the other hand, the general introduction of official registra- tion of conveyances, mortgages, etc., and the dis- position to protect the honest purchaser wlio re- lies upon the jiublio records have greatly modi- fied the Roman rules. The registered conveyee or mortgagee is always protected against the holders of unregistered titles, and in modern Geniian law there is, properly speaking, no title without registration. As to movable property, nearly all the Euro- pean legislations have accepted the old German rule that lionest possession is good title except against a prior possessor by whom the thing was lost or from wliom it was stolen ; and even in the case of lost or stolen property, the possessor who has purchased the thing "at a fair, in a market, at a public sale, or from a merchant who deals in such articles," is not obliged to surrender it un- til the price which he paid for it is refunded. In the moiiern German code the rule is somewhat different : purchase in market overt does not pro- tect the possessor of lost or stolen things, but purchase at a public auction gives him an un- assailable title. In the German code, also, the honest possessor of money or of negotialjle papers payable to bearer is always owner, and similar rules are contained in the commercial codes of several other coimtries. It follows from these rules regarding movable property that no hypoth- ecation of such jiroperty is recognized, but only pledge accompanied by possession [gage, Faust- pfand ) . The principle which underlies all these modern rules is that of 'publicity.' Rights which run against all the world must be evident to, or at least ascertainable by, all the world. This end is gained, as regards real property, by registration of titles. As regards movable property the only public evidence of title is possession. Encush and American Law. The common law of property has departed widely from the conceptions of the civil law. owing mainly to the independent development of the law of land un- der the infiuence of the feudal system. That sys- tem was late in establishing itself on English soil, but once established it impressed itself rapidly and permanently on the law of property. The fundamental distinction between movables and immovables disapi)eared, and we have, in their place, real and personal property, based on the distinction between real and personal forms of action. The real action was available to recover the very thing (res) of which the person institut- ing it had been dejirived — primarily land and its fixtures. The personal action was instituted to recover damages from the person whose detention or destruction of a chattel had rendered him amen- able to legal process. The two categories thus formed were swelled by circumstances, by anal- ogy, by considerations of convenience, resulting in a curious composite. To real property were added all the so-called incorporeal interests, whether they had to do with land or not — as easements, profits a prendre, rents, tithes, offices. So, too, as real property passed by descent to the heir of a decedent, everything which by local or general custom passed to an heir and not to an executor came to be included in the description of real property — such as the crown, jewels, heirlooms, titles of honor. On the other hand, certain inter- ests in land, as leaseholds, creditors' estates, mortgages, and shares in landholding corpora-